A Working Woman's Guide to Her Rights
Waitresses and waiters at a Marriott restaurant averaged more than the minimum wage in tips, and management paid any difference if the tips fell below the minimum wage. The U. S. Court of Appeals held that this policy violated the Fair Labor Standards Act as amended in 1974. The FLSA provided that employers must pay at least 50 percent of the minimum wage regardless of the amount of tips, that employees have a right to retain their tips unless the employees are participating in a valid tip pool arrangement (one in which only those employees who customarily receive tips participate) and that the tip credit toward the minimum wage was available only if employers informed employees about the provisions of the FLSA law. The court ordered back wages of the full amount of the minimum wage during the period of violation because it found that the employer's failure to inform employees of the FLSA tipping provisions was in bad faith. Richard v. Marriott Corp., 549 F.2d 303 (4th Cir. l977).
The Equal Pay Act of 1963 amended the FLSA to prohibit pay discrimination because of sex. It requires the employer to pay equal wages within the establishment to men and women doing equal work on jobs requiring equal skill, effort, and responsibility, which are performed under similar working conditions. Pay differences based on a seniority or merit system or on a system that measures earnings by quantity or quality of production are permitted. Employers may not reduce the wage rate of any employee in order to eliminate illegal wage differences. The law is interpreted as applying to "wages" in the sense of all employment related payments, including overtime, uniforms, travel, and other fringe benefits.
In addition to covering employees subject to the minimum wage requirements of the FLSA, the law applies to Federal, State and local government employees; executive, administrative, and professional employees; and outside salespeople.
A number of court cases have established that jobs need be only substantially equal, not identical, in order to be compared for purposes of the act; job descriptions or classifications are irrelevant in showing that work is unequal, unless they accurately reflect actual job content, and mental as well as physical effort must be considered.
What To Do
If you think you are not receiving equal pay for equal work, you may file a complaint with the Equal Employment Opportunity Commission, which enforces the Equal Pay Act. If you request confidentiality, your identity will not be revealed during an investigation of an alleged equal pay violation. If a violation is found, EEOC will negotiate with the employer for a settlement including back pay and appropriate raises in pay scales to correct the violation of the law. EEOC may also initiate court action to collect back wages under the act.
Under the Equal Pay Act you also have a right to sue privately for injunctive relief, back pay, interest, damages, attorney's fees, and court costs. However, you may not sue the employer if you have already been paid full back wages under EEOC supervision or if EEOC has filed a suit in court to collect these wages. You must file suit within 2 years of an Equal Pay Act violation, except in the case of deliberate violations, in which case there is a 3-year time limit.
A glass manufacturing company paid male selector-packers 21 cents an hour more than female selector-packers, and tried to justify the difference on the basis that men performed additional duties such as lifting and stacking cartons and using hand trucks. The Court of Appeals ruled that under the Equal Pay Act �equal � does not mean identical but rather substantially equal, and minor differences in duties do not justify pay differences. Shultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970).
Sex-Based Wage Discrimination.
Title VII of the Civil Rights Act of 1964, as amended, also prohibits wage discrimination based on sex, as well as race, religion, color and national origin. According to a 1981 decision by the U.S. Supreme Court, wage discrimination covered by Title VII is not limited to unequal pay for equal work. Most women workers are concentrated in relatively few occupations. Some who work in traditionally female jobs have filed complaints under Title VII, charging that such work is undervalued and underpaid in comparison with other work� generally performed by men�different in content but seen to require the same or less educational preparation, experience, skill and responsibility. For example, nurses have questioned their pay compared to that of city sanitarians, and clerical employees have claimed discrimination in comparing their wages to those of physical plant employees.
Up to now, the courts have been reluctant to find that unequal pay for jobs thought to be of equal value, by itself, is proof of sex-based wage discrimination. Future court cases and interpretations by the Equal Employment Opportunity Commission, which enforces Title VII, will help to further define what practices amount to illegal sex-based wage discrimination.
Promotions, Training, and Working Conditions.
Title VII of the Civil Rights Act of 1964 (described in the section on Getting the Job) also protects workers against discrimination on the basis of sex, race, color, religion, or national origin in most on-the-job aspects of employment. Employers must recruit, train, and promote persons in all job classifications without discrimination. Promotion decisions must be made according to valid requirements. Training and apprenticeship opportunities must be offered in accord with equal employment opportunity principles. Employers may not discriminate against individuals in any terms or conditions or privileges of employment.
Race discrimination in working conditions includes racial harassment by coworkers and lack of effective action on the part of management.
A Black employee was subjected to numerous instances of co- worker harassment, which the court found management and supervisors knew and should have known about and took inadequate steps to prevent racial harassment. The company also was found to have no clear policy against racial harassment. The court ordered the employer to take affirmative action, including educating and sensitizing supervisory and management personnel and developing written disciplinary measures to be directed against offending employees and officials; plaintiff was awarded attorney's fees by the court, which noted that he deserved them for performing a valuable public service although he had not prevailed on all issues. Equal Employment Opportunity Commission v. Murphy Motor Freight Lines, Inc., 488 F.Supp. 381, 22 EPD Pa.30,888 (D. Mn. 1980).
Religious anti-discrimination law requires employers to make reasonable accommodation to the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Flexible scheduling, voluntary substitutions or swaps, job reassignment and lateral transfers are examples of accommodating an employee's religious beliefs.
Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.
A Jewish airline employee was found to have been improperly harassed on the basis of his religion where he was singled out for unpleasant and exceptionally heavy work. Rattner v. Trans World Airlines, City of New York Commission on Human Rights, Decision No. 4135-J (September 11, 1973).
Discrimination on the basis of national origin is also prohibited under Title VII. An employer may not discriminate because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. A rule requiring employees to speak only English at all times on the job may violate Title VII, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if the employer did not tell employees of the rule.
Harassment on the basis of national origin is a violation of Title VII. Ethnic slurs and other verbal or physical conduct because of an individual's nationality is harassment if it creates an intimidating, hostile or offensive working environment, unreasonably interferes with work performance, or negatively affects an individual's employment opportunities.
Similar protections are provided to employees of Federal contractors and subcontractors under Executive Order 11246, as amended. (See section on Discrimination Based on Sex, Race, Color, Religion, and National Origin.) Under the affirmative action order for service and supply contractors, employers are required to set goals and timetables for promoting women and minorities in jobs where they have been underutilized.
On-the-job protection for workers with disabilities is provided under the Americans with Disabilities Act and the Rehabilitation Act of 1973. The Age Discrimination in Employment Act protects workers from on-the-job discrimination based on age. (These acts are listed under Getting the Job.)
Some States require employers to provide employees with meal periods, rest periods, and/or seats. Such State provisions applying to women only have generally been repealed, rendered invalid, or extended to men. Your State labor department listed in Appendix B can tell you whether your State has such provisions.
What To Do
If you think you have been treated unfairly on the job, and the basis for the action was your sex, race, color, religion, national origin, handicap, or age, you may contact the agency that enforces the law for more information about the protections provided and the enforcement process. You can find out how to file a complaint and what your legal rights are. The laws prohibit employers from discharging or otherwise discriminating against individuals who file complaints or participate in an enforcement process.
If you have a court hearing and you want to pursue money damages because of the intentional discrimination you suffered, either you or your employer can now request a jury trial. The Civil Rights Act of 1991 provides these new rights to employment discrimination victims, but the law limits the amount of money an employee can recover for sex discrimination.
Each complainant may recover damages for future financial losses, emotional pain, suffering, mental anguish, loss of enjoyment of life, and other non-pecuniary losses. Excluding any back pay, the amount recovered for each complainant may not exceed:
- $50,000 for employers with 15-100 employees;
- $100,000 for employers with 101-200 employees;
- $200,000 for employers with 201-500 employees; and
- $300,000 for employers with more than 500 employees.
Pregnancy Discrimination Act
Title VII of the Civil Rights Act of 1964 as amended in 1978, specifically prohibits discrimination because of pregnancy. Employers cannot refuse to employ a woman because of pregnancy or terminate her, force her to go on leave at an arbitrary point during pregnancy, or penalize herbecause of pregnancy in reinstatement rights�including credit for previous service, accrued retirement benefits, and accumulated seniority.
The law does not require an employer to provide a specific number of weeks for maternity leave, or to treat pregnant employees in any manner different from other employees with respect to hiring or promotions, or to establish new medical, leave, or other benefit programs where none currently exist.
The law requires that women affected by pregnancy, childbirth or related medical conditions be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as persons not so affected but similar in their ability or inability to work. The amendment does not require employers to pay for health insurance benefits for abortions, except where the woman's life would be endangered or where medical complications have arisen from an abortion. On the other hand, it does not preclude employers from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. Employers may not fire or refuse to hire a woman simply because she has exercised her right to have an abortion.
What To Do
If you think you are being treated unfairly because your temporary inability to work is due to pregnancy, you should contact the Equal Employment Opportunity Commission office that serves your area for information about your rights under Title VII. (See Appendix A for addresses.)
Nora Satty was required to take leave of absence because of her pregnancy. When she returned to work she was given a temporary position, and was denied her accumulated seniority, with the result that she was unable to compete successfully for a permanent position in the company. Under company policy seniority was retained during leaves of absence for disease or disability other than pregnancy. The Supreme Court held that the company policy violated Title Vll of the Civil Rights Act of 1964 because it imposed a burden on women that was not imposed on men. Nashville Gas Co. v. Satty, 434 U.S. 136 (1977).
All Title VII prohibitions against sex discrimination in employment, including hiring, firing, terms, conditions or privileges of employment and pregnancy discrimination, are covered by the new remedies available to employment discrimination victims in court. You may request a jury trial and pursue damages, in addition to seeking reinstatement, hiring or other non-monetary court orders.
State Maternity/Parental Leave Laws
State family leave laws vary widely. Many States have maternity and parental leave laws that allow a parent time off for the birth or adoption of a child. Some States have maternity disability laws for mothers to recover after childbirth. Others have maternity leave laws for mothers during pregnancy, childbirth, and for the care of a newborn or newly adopted child. And there are some that provide leave to care for the illness of a child, spouse, parent or the employee himself or herself. More States provide maternity or parental leave to employees of State government than to workers in private employment. These State maternity and parental leave laws provide for a specific number of weeks that a parent may take off for the birth or adoption of a child, and usually include a reinstatement provision so that an employee can come back to his or her job or a similar job. These laws sometimes require provisions for the continuation of health insurance while the employee is on leave.
Five States and Puerto Rico have temporary disability insurance (TDI) laws that provide partial salary replacement for non-work related disabilities and these disabilities include childbirth and pregnancy related conditions. These TDI laws do not include reinstatement to the same or similar job.
What To Do
If you have questions about whether your State has a maternity or parental leave law, you should contact the State department of labor or human or civil rights agencies.
A Working Woman's Guide to Her Rights
US Department of Labor
Office of The Secretary